Ontario Court of Justice

Date: June 15, 2015

Court File No.: Central East - Newmarket 4911-998-12-05329-04; -05

Between:

HER MAJESTY THE QUEEN

— AND —

YUK YUEN LEE AND HONG ZHEN LI

Before: Justice David S. Rose

Reasons for Sentence released on: June 15, 2015

Counsel:

• C. Shirtliff-Hinds, M. Guirguis — counsel for the Crown
• R. Wellington — counsel for the accused Hong Zhen Li
• The accused Yuk Yuen Lee — on his own behalf

ROSE J.:

Conviction and Overview

[1] On January 28, 2015 I found Mr. Yuk Yuen Lee guilty of Production of Marijuana x2 and Possession of Marijuana for the Purpose of Trafficking x2. Ms. Hong Zhen Li was found guilty of Production of Marijuana and Possession of Marijuana for the Purpose of Trafficking. Reasons for judgment were released that day. These are my reasons for sentence.

The Grow Operations

[2] The production facilities which were found by the York Regional Police in this case were located at 434 Birchmount Road in Toronto, and also 7275 Rapiston Court in Mississauga. At 434 Birchmount the grow operation was in an industrial warehouse. It was a hydroponic operation complete with loading bay, forklift, fertilizer system, and clone room. When the police entered the facility on June 26, 2012 pursuant to a search warrant it had 4,961 plants. Evidence at trial showed that 434 Birchmount had a hydro bypass. The yield of that crop was approximately 310 pounds every 2 months. DC Robinson gave an opinion that the value of that crop was anywhere from $558,000 to $1.389 million. Therefore, on an annual basis 434 Birchmount would have produced marijuana of a value from $3.348 to $8.334 million.

[3] 7275 Rapiston contained 6,758 Plants. It too was in an industrial warehouse type building, and contained a sophisticated ventilation system, clone room, and irrigation facilities. The size of that crop was 422 pounds every two months with a value of between $759,600 to $1.6895 million per crop. Therefore, on an annual basis 7275 Rapiston Court would have produced marijuana of a value from $4.5576 million to $10.137 million.

[4] The value of the entire operation at the time of seizure was between $1.317 and $3.0785 million. Precision is not necessary here. It is an issue of order of magnitude, which is to say that the two grow operations in this trial contained illicit substances worth over a million dollars at a time and produced illicit profits in the order of many millions of dollars per year.

[5] Both facilities had mature marijuana plants, as well as clones, which strongly suggests that both locations were in full operation, and had been so for some time, although there is no evidence about how long either had been working.

Evidence Regarding Mr. Lee

[6] Evidence at trial showed that Mr. Lee was moving marijuana clones from 434 Birchmount to 7275 Rapiston on June 2, 2012, which was about three weeks before the police entered both locations. When he was arrested he was leaving 7275 Rapiston Court in a Honda Odyssey mini-van containing fertilizer and 4 cell phones. Mr. Lee had $2,350 on him, and an Enbridge bill for 7275 Rapiston Court. At trial Mr. Lee himself lead evidence in the form of a Doctor's letter that he is unable to perform manual work or any work requiring mental concentration. He admitted to being at both locations 4 – 5 times per month. $2,350 in Canadian Currency was seized from Mr. Lee at the time of his arrest, for which the Crown seeks Forfeiture under s. 16 of the CDSA. The Crown also seeks forfeiture on a similar basis in law of the Brown Montana van licence plate BERB 778 seen in the evidence.

[7] The combination of these pieces of evidence permits the inference that Mr. Lee was not a menial worker. I cannot on the facts find that he was at the apex, or was the operating mind behind the operation, but he was heavily involved in the management of each location and therefore stood to gain considerable profit from them had the police not intervened. I also find that this was a commercial enterprise motivated by pure greed.

Pre-Sentence Report for Mr. Lee

[8] A Pre-Sentence Report was prepared for Mr. Lee. He is 61 years old, and has a prior but dated record for the following:

Year	Offence	Sentence
1992	Break and Enter	Suspended Sentence
1996	(1) Possession of Instruments of Forgery	(1) 4 months & 11 months Pre-Trial Custody
	(2) Conspiracy to Possess Property Over $5000	(2) 1 year and 6 months consecutive
	(3) Possession of Instruments of Forgery	(3) 1 year consecutive
	(4) Possession of Device to Obtain Telecommunication	(4-5) 6 months concurrent on each charge concurrent and concurrent
	(5) Possession of Property Obtained by Crime Over $5000

Mr. Lee's criminal record was not put to him when he testified, and I am only learning of his record on sentencing. It played no part in my credibility determination at trial.

[9] As a result of his criminal record Mr. Lee is subject to a deportation order to China, but it appears that the Chinese Government will not issue him travel documents. The result is that Canada Border Services Agency cannot execute the deportation order. Mr. Lee was married but is now divorced, and appears to have a positive relationship with his children who are now adults. He suffers from mild depression and asthma. He speaks Mandarin and Cantonese, and his English skills are poor. He has operated three businesses but none of them took hold and he declared bankruptcy in 2011, which is consistent with his trial evidence.

[10] Under these circumstances I do not find that Mr. Lee has much in the way of prospects for rehabilitation. His ability to obtain lawful employment is limited by his lack of legal status in Canada.

Information Regarding Ms. Li

[11] Ms. Li's situation is different from Mr. Lee. She was found at 7275 Rapiston Court at the time of the take down. I heard no evidence which suggests that she was involved in the management of either grow operation. It is clear from the evidence heard at the trial that the size of each grow operation would have required any number of farmers who perform the menial, but illegal, physical labour of tending to the marijuana crops. I have no evidence which might support the inference that she was profiting, or stood to profit from the crop. She was not in possession of large amounts of cash, cell phones or the like. In the absence of evidence that she was more than a menial farmer I find that her degree of involvement is much less than Mr. Lee. I was provided no criminal record for Ms. Li.

[12] I do not have a Pre-Sentence Report for Ms. Li and was advised by Mr. Wellington that Ms. Li was born in China, and is 52 years old. She came here in the early 1990s and has two daughters. One is in Ryerson University and the other in high school. She has no other family here, having been divorced in 2001. She has limited ability in English, which means that her employment is restricted to menial jobs. From this I would conclude that rehabilitation must play a part in Ms. Li's sentencing.

Restitution Order

[13] The Crown also seeks a Restitution Order under s. 738(1) of the Criminal Code in the amount of $89,490 in favour of Intact Insurance, the insurer of 434 Birchmount. It appears from the Damages Brief filed on behalf of Intact Insurance that damages totalling $268,470.61 were incurred from the marijuana production facility found at that address on June 26, 2012. Once rental income is subtracted from that figure, the net restitution figure of $187,069.32 was arrived at. The Crown considers Mr. Lee to be one third responsible for that amount, and therefore seeks a Restitution Order against him of $62,356.44.

Test for Restitution Order

[14] Under s. 738 Restitution Orders are granted for a basket of objectives including:

i) emphasizing the sanction imposed upon the offender,

ii) making the offender responsible for compensating loss to the victims,

iii) preventing the accused from profiting from crime, and

iv) providing a convenient, rapid and inexpensive means of recovery for the victim.

See R. v. Eizenga 2011 ONCA 113 at para. 97

[15] In determining whether to issue a Restitution Order the sentencing court should consider the following factors, again quoting from Eizenga at para. 99:

i) whether the offender pleaded guilty,

ii) the custodial portion of his sentence,

iii) the principle of rehabilitation,

iv) the magnitude of the crime, and whether it involved a breach of trust,

v) the offender's responsibility for the crime, and

vi) his ability to pay, which includes his assets, education and ability to earn income

[16] In the case at Bar Mr. Lee was found guilty after a trial, and will receive a substantial custodial sentence as a result. He has limited prospects for rehabilitation and his ability to pay is extremely limited. The Crown does not seek a Restitution Order if I impose a sentence of 5 years, but even without that concession I would not order a Restitution Order. On this issue it is a close case, and there is no mathematical formula about whether or not to impose it, but balancing all these factors I would decline to order restitution.

[17] While Mr. Lee and Ms. Li were both found guilty after a trial, that is not an aggravating factor in sentencing. That said, neither offender has the mitigating benefit of a guilty plea. The pre-sentence report for Mr. Lee said (at page 5) that he "…minimizes his role and responsibility for the offences before the Court." There is a lack of remorse on the part of both offenders.

Co-Accused Sentencing

[18] Other persons were arrested in this investigation. Tzu Ming Li was sentenced for his involvement in both the 434 Birchmount Road grow op and the one at 7275 Rapiston Court. He received a 3 year jail sentence for those, and a third which is not before me. Mr. Li pleaded guilty on December 14 2012, after being charged on June 26 of that year. He had a previous criminal record including a conditional sentence for drugs. Another person, Seping Chen pleaded guilty to one count of production of marijuana and received a conditional sentence of 2 years less a day. Mr. Chen apparently pleaded guilty on October 22, 2013 and was sentenced on May 1, 2014.

Sentencing Framework

[19] On behalf of Ms. Li, Mr. Wellington seeks a conditional sentence. He identifies the range of sentence appropriate to Ms. Li as being anywhere from 90 days intermittent to 2 years less a day. He argues that a Conditional Sentence will achieve the goals of denunciation and deterrence.

[20] I was provided many cases by Mr. Wellington where Conditional sentences were imposed, including R. v. Emonts 2011 ONCJ 544; R. v. Choi 2013 ONSC 5082; and R. v. Andriano 2006 ONCJ 63. In each case the offender had the mitigating effect of a guilty plea, though I recognize that pleading guilty is not a necessary condition to the availability of a conditional sentence.

[21] I find that the appropriate sentence for Ms. Li is more than a suspended sentence but less than 2 years. In that sense she is legally eligible for a conditional sentence. That said, she was found guilty of production of marijuana in connection with as large a marijuana grow operation as is seen in this Court – one containing over 6,700 plants. Despite Mr. Wellington's able submissions I have concluded that a Conditional Sentence simply would not be consistent with the fundamental principles of sentencing. I agree with Bellamy J.'s comments in R. v. Chao, 2007 O.J. No. 1887 where she agreed with Speyer J. in R. v. Nguyen, 2005 O.J. No. 6019 that deterrence and denunciation in some cases simply mandates a custodial term. This is one of them. It follows that, with the greatest respect to my brother Gorewich J., who sentenced the co-accused Mr. Chen, I disagree that a conditional sentence is appropriate in the circumstances.

[22] The Crown seeks a penitentiary term of 6 years against Mr. Lee and an upper reformatory sentence for Ms. Li.

Sentencing Principles

[23] The best place to start for guidance in a sentencing framework is the Criminal Code, which in s. 718 outlines the legal considerations which must be taken into account in sentencing an offender.

718. Purpose The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[24] I recognize that in law the sentence required must be proportionate to the gravity of the offence and degree of responsibility of the offender.

Sentencing Cannabis Production

[25] As the learned authors Armstrong, Sabbadini, Boni & Coroza point out in Sentencing Drug Offenders at page 4-19, (looseleaf, Canada Law Book) sentencing cannabis production must rely on a "confused state of the law":

Courts today continue to struggle to define a consistent, principled approach to sentencing in these cases…

[26] Armstrong et al identify a number of factors which may be aggravating or mitigating factors in a given case. These include:

i. whether the production facility is for innocent purposes or for purely commercial purposes;

ii. the size and sophistication of commercial production facilities;

iii. whether a commercial production facility was in full stride before state intervention;

iv. the prevalence of this type of offence in a residential community;

v. the existence of a hydro-bypass;

[27] As a result of amendments to s. 7(3) of the CDSA, for offences occurring after November 5, 2012 certain factors, the existence of even one, are deemed to be sufficiently aggravating to engage a minimum mandatory sentence of imprisonment:

vi. use of property belonging to a 3d party in commission of the offence;

vii. potential harm to a person under 18 in the immediate area;

viii. potential safety hazards including booby traps;

[28] In the case at Bar, factors i, ii, iii, v and vi are present as aggravating factors on the facts from this trial, but the remaining factors are not. The date of the offences predates these minimum mandatory amendments to the CDSA are thus not applicable, although I do consider the fact that both 434 Birchmount and 7275 Rapiston belonged to persons other than Mr. Lee or Ms. Li to be an aggravating factor nonetheless. Intact Insurance filed materials on sentencing which shows in some detail the amount of damage that the grow operations did to 434 Birchmount.

Comparable Sentencing Cases

[29] Sentencing decisions for cases involving production or possession of marijuana valued in the millions are not plentiful.

[30] In R. v. Gobran, 2013 O.J. No. 2825 (C.A.), the Appellant received a 5 year sentence of incarceration after pleading guilty to production of marijuana and possession of marijuana for the purpose of trafficking. Gobran had pleaded guilty to his involvement in a marijuana grow operation of over 6,000 plants worth between 1.6 and 2.5 million dollars. The sentencing court found him to be the operating mind. His appeal against sentence was denied on the basis that 5 years for such an operation was not outside the acceptable range of sentence given the gravity and seriousness of the offence.

[31] In R. v. Tran, 2006 O.J. No. 4161 (C.A.), the Appellant pleaded guilty to Possession of 750 pounds of Marijuana for the Purpose of Trafficking. The value of that quantity of contraband was 2.1 million dollars. He received a 4 year jail term from the sentencing judge. The Court of Appeal upheld that sentence on the basis that his role in the scheme was as a trusted member and the operation was on a very large scale.

[32] In R. v. Ha, 2009 O.J. No. 6383 (C.J.), Justice Radley-Walters imposed a 7 year term of imprisonment on an offender who pleaded guilty to being the principal in a 40,000 plant marijuana operation. The value of that amount was between 26 and 35 million dollars.

[33] These cases indicate that the principal objectives in sentencing marijuana producers involved in large commercial operations are: general and specific deterrence, and denunciation.

[34] It is also of note that Parliament has seen fit to impose minimum mandatory sentences of 3 years jail where the production involves in excess of 500 plants. That is not binding on me, but I do consider Parliamentary direction in this case regarding how seriously substantial grow operations are to be taken.

Sentencing Decision for Mr. Lee

[35] I identify deterrence and denunciation as the predominant factors in this sentencing. In the case of Mr. Lee this cries out for a penitentiary sentence. Accordingly, given his degree of involvement and personal situation he is sentenced to a 5 year term of imprisonment. I understand that Mr. Lee has been in custody since March 6, 2015, which is 129 days. I credit him with 1.5 days for each of those days on the basis that there is an inference that he has lost any parole eligibility for each of those days. The result is that Mr. Lee will have 194 days (6.5 months) deducted from his overall sentence of 5 years. The sentence will be broken down as follows:

• Count 1 on Information 12-05329 (Production Charge June 2, 2012) 3 years in jail;

• Count 2 on Information 12-05329 (Possession of Marijuana FTPT Charge June 2, 2012) 3 years in jail concurrent to Count 1;

• Count 3 on Information 12-05329 (Production Charge June 26, 2012) 2 years jail consecutive to Count 1 less pre-trial custody of credited 6.5 months resulting in effective sentence of 1 year 5.5 months.

• Count 4 on Information 12-05329 (Possession of Marijuana FTPT Charge June 26, 2012) 2 years jail consecutive to Counts 1 & 2 but concurrent to Count 3 less pre-trial custody of credited 6.5 months resulting in effective sentence of 1 year 5.5 months.

Sentencing Decision for Ms. Li

[36] As regards Ms. Li, given her lesser involvement in only one of the grow ops her overall responsibility is different than Mr. Lee. A conditional sentence of imprisonment would not meet the predominant objectives of deterrence and denunciation, and her sentence will be 18 months in jail concurrent on both the Production of Marijuana charge and Possession for the Purpose of Trafficking. In order to assist in her rehabilitation she will be placed on Probation for 18 months with terms that she not possess any non-medically prescribed drugs, and that she complete literacy counselling.

Forfeiture Order

[37] The Crown seeks forfeiture orders against both Mr. Lee and Ms. Li under s. 16 of the CDSA. In order to fit within the definition of "offence related property" under s. 2(1) of the CDSA there must be some evidentiary basis to link the property sought to the designated substance. In R. v. Durette 2014 ONCA 747 the Crown sought to forfeit the van of an offender who had been operating the vehicle en route to his residence and used it to transport cocaine to his residence. The Court of Appeal overturned a forfeiture made at sentencing on the basis that mere transportation of drugs in the van with no evidence that the transportation was made in order to distribute drugs was insufficient to make the van offence related property. The Court found that the forfeiture would have been properly founded if the offender "…had used the van to acquire the drugs or that drugs were hidden in the van itself." I take this to mean that in order to constitute offence related property there must be a nexus between the item sought and the offence on a balance of probabilities. Here it is alleged that the nexus between the grow op at 7275 Rapiston and the Montana van is established three ways:

1. On June 2, 2012 Ms. Li was seen getting out of the Montana and entering the Honda Odyssey;

2. On June 12, 2012 the Montana was seen with Ms. Li in the loading bay of 7275 Rapiston at a time when it can be reasonably assumed to contain thousands of marijuana plants;

3. On June 26, 2012 the Montana was seen entering 7275 Rapiston.

[38] There is no evidence that the Montana ever contained marijuana (unlike the Honda Odyssey) or the materials necessary to produce it. At most the Montana may have been used to by Ms. Li to travel to the grow op at 7275 Rapiston but in that regard was no different from a city bus, had she taken public transport. There is no evidence that the Montana was used for anything more than that. Section 16 of the CDSA properly seeks to relieve offenders of the tools of the trade, but its use be limited to that. In order to constitute offence related property something more is required than the inference that the van was used to carry the offender to the scene of the crime. Accordingly the Forfeiture Application against the Montana van is denied.

[39] The Crown seeks forfeiture of the cash seized from Mr. Lee on arrest. The sum of $2,350 was seized from him after he was leaving the Rapiston Court operation. The money was on Mr. Lee during the time of the grow operation. Evidence was lead during trial that he had gone to hardware stores purchasing items which were useful to the grow operations. He has no apparent source of lawful income which might explain that amount of cash. The cash co-existed in time and space with fertilizer and several unexplained cell phones. Based on these considerations I find on a balance of probabilities that the cash is offence related property and I will order its forfeiture.

Other Orders

[40] The Crown seeks DNA Orders under s. 487.051(3). I note that Mr. Lee has a serious criminal record which pre-dates the creation of the DNA databank. Production of a Controlled Substance is a secondary designated offence under s. 487.04. Guiding myself from the Ontario Court of Appeal's ruling in R. v. Hendry, I find that it is in the best interest in the administration of justice to make such orders against both offenders, given the gravity of the facts for which they have been convicted. An order under s. 487.051(3) will go against both Mr. Lee and Ms. Li.

[41] Lastly, there will be weapons prohibition orders under s. 109 for 10 years against both Mr. Lee and Ms. Li.

Released: June 15, 2015

Signed: "Justice David S. Rose"